Judges Standing Upside-Down

Something funny is happening on the way to the courthouse — and I don’t mean county clerks refusing to issue licenses for same-sex marriages. For decades, judicial conservatism has been defined at least in part as strict observance of the elements that make a case justiciable in federal court: a live controversy and a plaintiff with a concrete problem — as opposed to a general grievance — that can be fixed by a favorable ruling. I first learned about the doctrine of standing back when progressive law professors wrung their hands over how flagrantly justices like William H. Rehnquist were invoking standing and other jurisdictional barriers in order to close courthouse doors to meritorious lawsuits.

I suspect that Chief Justice Rehnquist, who died 10 years ago today, would be startled — or, given his sense of irony, at least amused — by how things have flipped. Now it’s conservative judges who rail against “the consequences of our modern obsession with a myopic and constrained notion of standing,” to quote Judge Janice Rogers Brown, one of the federal bench’s more outspoken conservatives. Judge Brown, who sits on the United States Court of Appeals for the District of Columbia Circuit, wrote an opinion last month in a case on the attempt by Joseph M. Arpaio, the notorious Phoenix sheriff, to block the Obama administration’s plan to defer deportation for young undocumented immigrants and for the undocumented parents of United States-born and lawful-resident children.

The D. C. Circuit panel, in an opinion by Judge Cornelia T. L. Pillard, threw out Sheriff Arpaio’s lawsuit for lack of standing. Judge Brown had to agree that the sheriff’s claim, which was that the president’s policies would lead more undocumented immigrants to go to or remain in Arizona and commit crimes there, couldn’t under existing precedents be the basis for a lawsuit. “We are aware of no decision recognizing such an attenuated basis for standing,” Judge Pillard wrote.

In her separate concurring opinion, Judge Brown bemoaned those precedents, which she said “effectively insulate immense swaths of executive action from legal challenge.” She continued: “Our relentless emphasis on the need to show a concrete injury caused by executive action and redressable by judicial relief makes it virtually impossible to challenge many decisions made in the modern regulatory state.”

Ah, the regulatory state. That’s the rub. Or is it, more precisely, the regulatory state in the Obama era that gets certain judges’ goat? Judge Brown used the phrase “the aggressive entrepreneurship of the executive,” preserving the veneer of nonpartisanship by not directly attaching the words to the incumbent chief executive. But her meaning was unmistakable: there oughtta be a way for us judges to rein in this runaway president.

Judges can be creative, and even a precedent that looks airtight can be malleable. In February, ruling in a lawsuit brought by 26 states, a federal district judge in Houston, Andrew S. Hanen, issued a preliminary injunction against President Obama’s deferral of deportation for parents of American citizens. What, one might ask, was the basis for the states’ standing? What was their claim of concrete injury from the executive actions they were challenging? Not to worry: Judge Hanen found a prospective consequence of the policies that, he declared, met the precedents’ requirement of “injury in fact.” Once permitted to remain in the United States, the beneficiaries of the policy would be entitled to driver’s licenses, he observed. Focusing on Texas (only a single plaintiff in a case needs to establish standing for the case to survive), Judge Hanen said that because the $24 that Texas charged for a driver’s license didn’t cover the state’s actual costs, it would cost “in excess of several million dollars” for Texas to issue licenses to all those newly eligible. Bingo, we have standing!

In May, the United States Court of Appeals for the Fifth Circuit refused, over a dissent, to lift the injunction, agreeing that the driver’s license issue was sufficient to keep the case alive. “Driving is a practical necessity in most of Texas, especially to get and hold a job,” Judge Jerry E. Smith observed, “so many beneficiaries will be eager to obtain licenses.” Judge Smith, joined by Judge Jennifer Walker Elrod — two of the most conservative judges on the country’s most conservative federal appeals court — dismissed the federal government’s argument that the license costs would be offset by increased revenue from car registrations and higher tax receipts from the immigrants’ improved employment. Those benefits were “wholly separate from the costs of issuing licenses” and therefore irrelevant, Judge Smith said.

The classic rationale for a robust doctrine of standing is that it protects the constitutional separation of powers. In 1993, before he became a judge, John G. Roberts Jr. expressed this view in an article published in the Duke Law Journal. “By properly contenting itself with the decision of actual cases or controversies at the instance of someone suffering distinct and palpable injury,” the future chief justice wrote, “the judiciary leaves for the political branches the generalized grievances that are their responsibility under the Constitution.” He further observed: “Separation of powers is a zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of the other branches.” (Justice Antonin Scalia, then a federal appeals court judge, wrote a law review article in 1983 titled “The Doctrine of Standing as an Essential Element of the Separation of Powers.”)

As chief justice, John Roberts has had several opportunities to opine on standing. His record has largely been consistent with his early views. The most important dissenting opinion he wrote during his first few years on the Supreme Court dealt with standing. It came in a 2007 case brought by several states to challenge the refusal of the Environmental Protection Agency to assert regulatory authority over automobile emissions that contributed to global warming. The 5-to-4 majority in Massachusetts v. E.P.A. found that Massachusetts and other coastal states had standing because of the erosion and other concrete injuries they could plausibly expect from rising seawaters. Chief Justice Roberts disagreed vigorously. Standing was not “a lawyer’s game,” he wrote, but rather “a fundamental limitation ensuring that courts function as courts, and not intrude on the politically accountable branches.”

Nonetheless, in 2012 and again this past June, the court agreed to hear a challenge to the affirmative-action admissions plan at the University of Texas despite the fact that the woman who claimed she was unconstitutionally denied admission because she is white had long since graduated from another university and had no continuing injury that could be repaired by Texas — “redressability” being a core principle of standing doctrine. There is no way that this long-belabored case is at this point anything more than an abstract policy dispute. Nor is the court’s decision to hear it a second time anything other than a “fit of spite” (to quote Justice Scalia in another context) aimed at the Fifth Circuit, which ignored the slap on the wrist that the justices administered in 2013 and upheld the admissions policy a second time. If Chief Justice Roberts has doubts about standing of the plaintiff, Abigail Fisher, he has not shared them publicly.

Also on the court’s docket for its new term is a fascinating case that raises the question of whether Congress can confer standing by enacting a law that gives people the right to sue for a technical legal violation that might not amount to the “injury in fact” — actual harm — that would otherwise be necessary to sustain a lawsuit in federal court. The statute at issue in this case, Spokeo, Inc. v. Robins, is the Fair Credit Reporting Act. Similar citizen-suit provisions are common among federal statutes, with this case representing the tip of a very big iceberg. We’ll soon learn more about who these days stands for standing.